Central Administrative Tribunal - Jabalpur
Manoj Sharma vs Union Of India on 11 September, 2013
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH,
Jabalpur
Original Application No.777 of 2009
Jabalpur, this Wednesday, the 11th day of September, 2013
Honble Mr. Justice Dhirendra Mishra, Judicial Member
Honble Mr. G.P.Singhal, Administrative Member
Manoj Sharma, S/o Shri P.N.Sharma, Aged about 43 years,
Ex. Sr. Parcel Clerk/ BPL, Parcel Office, Bhopal Division,
West Central Railway, Bhopal, R/o 126, Nainagiri, J.K.Road,
B.H.E.L., Bhopal, M.P. - Applicant
(By Advocate Shri Ajay Pratap Singh)
V e r s u s
1. Union of India, Through its General Manager,
Ministry of Railway, West Central Railway,
Indira Market, Jabalpur, M.P., Pin Code-482001
2. The Senior Deputy General Manager cum Chief Vigilance Officer,
Vigilance Branch, West Central Railway, Jabalpur, Pin Code-482001
3. The Divisional Railway Manager, West Central Railway,
Bhopal, M.P., PC 462026
4. The Senior Divisional Commercial Manager,
West Central Railway, Bhopal, PC 462026
5. The Divisional Commercial Manager,
West Central Railway, Bhopal, M.P., PC 462026
6. Shri K.K.Shrivastava, Inquiry Officer/C.E.I.,
O/o the General Manager, Vigilance Head Quarter Branch,
West Central Railway, Jabalpur, Pin Code-482001 -Respondents
(By Advocate Shri J.S.Rathore)
(Date of reserving the order:-06.09.2013)
ORDER
By Dhirendra Mishra, JM.-
Through this Original Application, the applicant has prayed for following reliefs:-
8(i) That, this Honble Tribunal be pleased to quash the impugned order dated 16.12.2008 (Annexure A-16) passed by the respondent no. 4 and consequently set-aside the charge memorandum dtd.27.11.06 and vitiated inquiry, thereafter the applicant be re-instated in service to the post of Sr. Parcel Clerk with immediate effect with all consequential benefits.
(IA) That, this Honble Tribunal may be pleased to quash the impugned order dated 03.03.2010 Annexure A-19 passed by respondent No.1.
(ii) That, this Honble Tribunal kindly be pleased to direct respondents to declare the intervening period from date of compulsory retirement to the date of order of this Honble Tribunal as period of duty for all purposes.
(iii) That, this Honble Tribunal kindly be pleased to direct respondents to pay the applicant difference of pay and allowances and all other consequential benefits including payment of difference of pay and allowance for the period of suspension.
(iv) Any other directions, which this Honble Tribunal may deem fit and equitable may also be granted in the interest of justice.
2. Shri Ajay Pratap Singh, learned counsel for the applicant submits that the applicant was working as Senior Parcel Clerk at Bhopal on 23.08.2006 when a decoy check was conducted by the vigilance organization and a major penalty charge sheet under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 (hereinafter referred to as the 1968 Rules) was prepared on the allegation that the applicant accepted Rs.20/- from the decoy passenger Shri Abdul Hai as illegal money while booking the motor cycle in parcel and a sum of Rs.682/- was detected in excess in his private cash. The respondent No.2, vide letter dated 07.11.2006 (Annexure A-2) forwarded the draft major penalty charge sheet to the Senior Divisional Commercial Manager (for brevity Sr.DCM), for issuance of major penalty charge sheet to the applicant and to impose stiff major penalty with further directions to appoint enquiry officer etc. In compliance of said directions of respondent No.2, charge sheet dated 27.11.2006 (Annexure A-5) was served upon the applicant and enquiry officer was appointed vide order dated 12.12.2006 (Annexure A-6), without compliance of the provisions contained in Rule 9(2) of the 1968 Rules. The applicant submitted his written statement of defence on 10.08.2007 (Annexure A-7) after conclusion of the enquiry. The entire enquiry was conducted by the enquiry officer himself as no presenting officer was appointed and thereafter enquiry officer submitted enquiry report on 11.10.2007, and a copy of same was forwarded to the applicant for enabling him to file representation vide letter dated 24.10.2007 (Annexure A-12). The applicant submitted his written representation against the report of the enquiry officer on 12.11.2007 (Annexure A-13), however, the disciplinary authority without application of mind as per dictates of the respondent No.2 imposed the penalty of compulsory retirement vide order dated 28.04.2008 (Annexure A-14) and the departmental appeal preferred by the applicant against the aforesaid order of punishment was again dismissed vide order dated 16.12.2008 (Annexure A-16). Thereafter, the applicant filed revision-petition 28.01.2009 (Annexure A-17) and addressed reminders to the revisional-authority. However, when his revision-petition was not decided within a reasonable time, the instant Original Application was filed. During pendency of this Original Application, the respondents have decided and rejected the aforementioned revision petition vide order dated 03.03.2010, which has also been challenged by the applicant by way of amendment.
3. The learned counsel for the applicant further argued that the penalty imposed by the disciplinary authority is without any jurisdiction and authority, as the applicant was promoted to the post of Senior Commercial Clerk Grade Rs.1200-2040 RPS/ Rs.4500-7000 RSRP on 21.08.1997 (Annexure RJ-7) by the respondent No.4 Sr.DCM. In terms of the provisions of Article 311 (1) of the Constitution, the applicant could not be imposed the penalty of compulsory retirement by an authority i.e. the DCM who is subordinate to the authority (Sr. DCM) by whom he was promoted as Sr. Commercial Clerk. The clause 9, 10, & 11 of the Schedule appended to the 1968 Rules also provides that penalty of compulsory retirement, removal, or dismissal from service on a railway servant can be imposed only by the appointing authority or an authority of equivalent rank or a higher authority. The respondents vide circular of Annexure R-3 issued in the year 2004 have also reiterated the aforesaid provision. Appointing authority has been defined in Rule 2(1) (a) of the 1968 Rules and as per the above definition also the appointing authority of the applicant is Sr.DCM a Junior Administrataive Grade Officer, whereas the impugned penalty has been imposed by the DCM, who is immediately subordinate to the appointing authority of the applicant, and thus punishment order is void ab initio.
4. The learned counsel for the applicant has further contended that the departmental trap was conducted by the vigilance in violation of the Rules and Trap procedure contained in the Indian Railway Vigilance Manual, 2006 (for brevity IRVM) (Annexure A-18). Abdul Hai an employee attached to the vigilance was used as a decoy and the same employee was used as a decoy in the case of Rajesh Kumar Sharma, Head Booking Clerk, as would be evident from the Tribunals order passed in Original Application No.326 of 2009 on 29.02.2012 (Annexure 4). His services were also utilized as a decoy in various other cases of vigilance, which is inconsistent with Rule 307.5(iv) to lay departmental trap. Rule 307.6 of the IRVM provide that public money cannot be utilized either to bribe or as a bribe, whereas in the instant case railway revenue was illegally used by the vigilance as would be evident from Test Check Memo (Annexure RJ-10). Even provisions contained in the 1968 Rules were not complied with and all the quasi-judicial authorities acted under the dictates of the Vigilance. The applicant was primarily charge-sheeted for accepting Rs.20/- from the decoy while booking the motor-cycle in parcel Ex-Bhopal to Rewa for loading motor cycle in train, whereas from perusal of the forwarding note of A-34 the motor cycle was booked by Sanjay Kumar Pandey and the same did not belong to decoy passenger Abdul Hai. From the statement of Abdul Hai recorded on 23.8.2006 and 29.3.2007 it would be evident that the concerned parcel clerk demanded Rs.480/-, for booking, whereupon currency note of Rs.500/- was given to him. He gave a receipt of Rs.480/- and returned Rs.20/-. When he requested that the motor cycle should be loaded on the same day, he answered that loading is done by others and the applicant had never asked for Rs.20/-. He was deputed by the officer to accompany vigilance check.
5. With regard to excess cash found, it was argued by the learned counsel for the applicant that Rs.600/- was received by the applicant from a representative of Danik Bhaskar for completing booking of the consignment of news papers lying with the applicant, who deposed the above fact during the enquiry. However, the above sum was treated as excess in private cash with the applicant.
6. Reliance is placed on the decisions of this Tribunal in the matters of S.C.Shukla Vs. Union of India and others, Original Application No.225 of 2012 decided on 26.02.2013.
7. On the other hand, Shri J.S.Rathore, learned counsel for the respondents submits that during vigilance check on 23.08.2006 in the Parcel Office where the applicant was working as Senior Parcel Clerk. it was found that applicant accepted Rs.20/- from decoy passenger as illegal money for booking motor cycle and Rs.682/- was found in excess in his private cash. The vigilance department of the respondents ensures that investigation of vigilance cases are conducted in proper manner and the charge sheet is prepared properly, so that the delinquent employee does not get any technical benefit. The disciplinary authority is free to impose any penalty upon the delinquent employee on the basis of enquiry report, however, information is sent to the vigilance organization being the investigating agency. Note 1 of Para 902 of the IRVM provides for full time enquiry officer to facilitate expeditious disposal of disciplinary cases against Group-C and D officials and inquiry organization is under the control of the Personnel Department, which is under the control of the Sr. Deputy General Manager. The enquiry officer Shri K.K.Shrivastava, Chief Enquiry Inspector, Headquarters is neither from the Vigilance Department nor working under the control of Vigilance Cell. Sr. Deputy General Manager is only ex-officio Chief Vigilance Officer of Zonal Railways. Applicant is guilty of accepting Rs. 20/- from the decoy passenger and an amount of Rs.682/- was also found excess in his private cash. Applicants explanation for excess cash is an after thought, whereas no receipt for a sum of Rs.600/- allegedly given by representative of Danik Bhaskar for booking was found at the time of vigilance check. So far as competency of the Divisional Commercial Manager to impose the penalty of compulsory retirement is concerned, promotion in the grade of Rs.1200-20240 RPS/ Rs.4000-6000 RSPS is within the jurisdiction of Senior Scale Officer i.e. DCM as would be evident from circular dated 10.9.2004 (Annexure R-III) and the office note of Annexure A-1 only shows that only posting was decided by the Sr.DCM being Divisional head of the Commercial Department, and simply because the Sr.DCM has approved the proposal for promotion of the applicant he does not become the appointing authority to appoint the applicant on the post of Senior Clerk. The Sr. DCM is the appellate authority in case of the disciplinary proceeding against the Senior Clerk and he has decided the departmental appeal of the applicant as would be evident from the appellate order filed by the applicant himself as Annexure A-16. Learned counsel for the respondents further submits that the order dated 26.2.2013 passed by this Tribunal in the matters of S.C.Shukla (supra) has been stayed by the Honble High Court of Madhya Pradesh at Jabalpur in Writ Petition No. 9425 of 2013 vide order dated 03.07.2013.
8. Heard learned counsel for the parties and perused the pleadings of the respective parties and the documents annexed therewith.
9. From perusal of the note sheet appended with Annexure A-1 we find that a proposal for filling up vacancies in grade Rs.1200-2040 from employees listed in the proposal was submitted by the APO for orders to the Sr.DCM and the Sr.DCM in turn after obtaining report of DAR of the employees, ordered posting of the employees as proposed.
10. The main contention of learned counsel for the applicant is that since the applicant has been promoted with the approval of the competent authority i.e. Sr. DCM, the Sr. DCM is the appointing authority and the DCM could not have imposed the penalty of compulsory retirement on the applicant.
11. The short question for our consideration is whether the impugned orders of punishment passed by the DCM, which has been subsequently affirmed by the appellate and revisional authorities, is void ab-intio as the said authority i.e. the DCM had no authority and jurisdiction to impose the penalty of compulsory retirement on the applicant under the relevant rules and whether the Sr.DCM, who had recorded his approval for promotion of the applicant to the post of Sr. Clerk, is for all practical purposes is competent authority to appoint the applicant.
12. In the matters of S.C.Shukla (supra), following the decisions in the matters of Jaidev Singh Vs. Union of India and others, 2012 (1)SLJ(CAT) 234 and Shahnoddin A.R. Vs. Union of India and others, 2012 (1)SLJ (CAT) 258 and also referring to the decision in the matters of H.K.Tiwari Vs. Union of India and others, delivered in Original Application No.549/2006 on 07.9.2007 by Bombay Bench of this Tribunal, which has been subsequently affirmed by the Honble High Court of Bombay, and the SLP against the said order by the respondents has been rejected by the Honble Supreme Court, this Bench has held that the applicant therein was provisionally promoted after obtaining approval from the competent authority i.e. the ADRM, and accordingly the Tribunal allowed the said OA and quashed the order of punishment. A relevant portion of the order in the matters of H.K. Tiwari (supra) reads thus:
20. Thus, we note that the views expressed by the Honble Supreme Court in the case of Smt. Kanta Devi were in the context of Rule 7 read with 27 of the CRPF Rules, 1955, and hence of no help to the respondents in the present case. In the case in hand, the respondents have themselves submitted that approval was taken from the Competent Authority, thereby taking it out of the controversy that ADRM is the Competent Authority to promote the applicant. The approval simply means permission to promote or ordering promotion. Thus, after taking approval from ADRM for promotion of the applicant, it cannot be at all countenanced that ADRM is not the Competent Authority. This view was also taken by a Co-Ordinate Bench of this Tribunal in the case of Raiendra Kumar Khandula v. Union of India & Others, ATJ 2004 (I) page 20. In that case it was held that once the approval was taken from the DRM for promotion, the DRM became the Appointing Authority.
13. In the matter, in hand, we find that the applicant was promoted provisionally on the post of Senior Clerk after obtaining approval from the competent authority, as is reflected from the Note sheet dated 27.08.1997 (Annexure-A-1). The Note sheet of Annexure-A-1 clearly shows that recommendations for promotion of the applicant on the post of Senior Clerk in the grade of Rs.1200-2040 was forwarded to the Sr.DCM for his approval and accordingly, the Sr.DCM accorded approval in the note sheet.
14. Therefore, in our considered view, the decision rendered by the Bombay Bench of the Tribunal in the matter of H.K. Tiwari Vs. UOI (O.A. No.549/2006) on 7.9.2007, which has been subsequently affirmed by the Hon'ble High Court of Bombay and the SLP preferred by the respondents has been further dismissed by the Hon'ble Supreme Court and the same has been followed in Jaidev Singh case, squarely applicable to the facts of the present case.
15. Therefore, we do not deem it appropriate to consider other grounds raised by the applicant against the impugned order of punishment.
16. Since our order in the matters of S.C.Shukla (supra) is based upon the view taken by the Tribunal in the matters of H.K.Tiwari (supra) and the same has been subsequently affirmed by the Honble Bombay High Court and the SLP against which has been further dismissed, by the Honble Supreme Court, we have no reason to take a different view only on the ground that our earlier order has been stayed by the Honble High Court of Madhya Pradesh.
17. In the result, the Original Application is allowed. The orders dated 28.04.2008 (Annexure A-14), 16.12.2008 (Annexure A-16), and dated 03.03.2010 (Annexure A-19) are quashed and set aside. However, the respondents shall be at liberty to take appropriate action in the matter through a competent disciplinary authority, in accordance with law. No costs.
(G.P.Singhal) (Dhirendra Mishra) Administrative Member Judicial Member rkv 8 Sub: competence of disciplinary authority OA No.777/2009 Page 8 of 8